17472/09
AT/sb
1
DG C
EN
COUNCIL OF
THE EUROPEAN UNION
Brussels, 14 December 2009
Interinstitutional File:
2008/0223 (COD)
17472/09
ENER 443
ENV 893
CODEC 1449
NOTE
from :
General Secretariat of the Council
to :
COREPER
Subject :
Draft DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL on the energy performance of buildings (Recast)
- Adaptations resulting from the entry into force of the Treaty on the Functioning
of the European Union (TFEU)
1.
The text of the draft Directive on the energy performance of buildings was agreed with
Parliament on 17 November 2009
1
, on the understanding that the adaptations to the text
necessitated by the entry into force of the Lisbon Treaty would be agreed later. The
adaptations proposed by the Presidency were discussed in the Energy Working Party and are
reflected in Annex, in the second column, with new text reflected in bold underlined.
2.
Article 5(1) of the draft Directive foresees that the Commission must establish by 30 June
2011 a comparative methodology framework for calculating cost-optimal levels of minimum
energy performance requirements for buildings - using the "regulatory procedure with
scrutiny". Some concern was voiced on the replacement of the "regulatory procedure with
scrutiny" by a "delegated act under Article 290 of the Treaty on the Functioning of the
European Union (TFEU)" instead of by an "instrument of implementation according to
Article 291 TFEU", on the grounds that the establishment of this methodology framework is
extremely important (since Member States will be expected to apply this framework) and
national experts should therefore be consulted during the preparatory phase; the possibility to
only object ex post would not suffice.
1
see doc. 16407/09
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In reply, the Commission assured delegations that every care would be taken to consult
experts and stakeholders in order to prepare a proposal that has every chance of not being
objected to by Parliament and Council, and referred to the Communication COM (2009) 673
"Implementation of Article 290 of the TFEU" which has since become available and which
confirms in point 4.2 "Preparatory work for the adoption of delegated acts" that experts and
stakeholders will be consulted. Several delegations have since announced that the assurances
given by the Commission in the Communication will probably be sufficient for them, and it
was furthermore highlighted that Parliament will likely oppose the use of Article 291.
In the Presidency's view, in the context of Article 5(1), the proposed 5-year (extendable)
duration of the delegation as specified in Article 20a is appropriate in order to provide the
possibility for updating and/or improving the methodology framework.
3.
It is recalled that Article 10(7c), according to which the Commission shall adopt a voluntary
common EU certification scheme for the energy performance of non-residential buildings,
contains a reference to a non-PRAC comitology procedure (advisory procedure). Based on the
discussions at working group level it is the Presidency's view that this provision requires no
adaptation (other than technical adaptations to recital 22 and Article 10 (7c)), see Annex II of
doc. 17477/09.
4.
Coreper is invited to confirm that the text in Annex, in the second column, can be used as a
basis for reaching agreement with the European Parliament on the adaptations to the draft
Buildings Directive that result from the entry into force of the TFEU.
___________________
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ANNEX
Text of doc. 16407/09 (pre-Lisbon Treaty)
New text
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the
European Community, and in particular Article
175(1)
thereof,
Having regard to the proposal from the
Commission,
Having regard to the opinion of the European
Economic and Social Committee
1
,
Having regard to the opinion of the Committee
of the Regions
2
,
Acting in accordance with the procedure laid
down in Article 251 of the Treaty
3
,
Whereas:
THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning
of the European Union, and in particular Article
194(2) thereof,
Having regard to the proposal from the
European Commission,
Having regard to the opinion of the European
Economic and Social Committee
4
,
Having regard to the opinion of the Committee
of the Regions
5
,
Acting in accordance with the ordinary
legislative procedure []
6
,
Whereas:
(2)
The natural resources, to the prudent and
rational utilisation of which Article 174 of the
Treaty refers, include oil products, natural gas
and solid fuels, which are essential sources of
energy, but also the leading sources of carbon
dioxide emissions.
(2)
[] An efficient,
prudent, rational and
sustainable utilisation of energy [] applies inter
alia to oil products, natural gas and solid fuels,
which are essential sources of energy, but also
the leading sources of carbon dioxide emissions.
(11) This Directive is without prejudice to
Articles 87 and 88 of the Treaty. Therefore the
notion of incentive used in this Directive should
not be interpreted as including state aid.
(11) This Directive is without prejudice to
Articles 107 and 108 of the Treaty. Therefore
the notion of incentive used in this Directive
should not be interpreted as including state aid.
1
OJ C […], […], p. […].
2
OJ C […], […], p. […].
3
OJ C […], […], p. […].
4
OJ C […], […], p. […].
5
OJ C […], […], p. […].
6
OJ C […], […], p. […].
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(22) The measures necessary for the
implementation of this Directive should be
adopted in accordance with Council Decision
1999/468/EC of 28 June 1999 laying down the
procedures for the exercise of implementing
powers conferred on the Commission
1
.
(22) The measures necessary for the
implementation of this Directive should be
adopted in accordance with Article 3 and 7 of
Council Decision 1999/468/EC of 28 June 1999
laying down the procedures for the exercise of
implementing powers conferred on the
Commission
2
..
(23)
In particular, power should
[…] be conferred on the Commission to
adapt to technical progress certain parts of
the general framework set out in Annex I
[…] , to establish a […]
methodology framework for calculating
cost-optimal levels of minimum energy
performance requirements […] . Since
those measures are of general scope and are
designed to amend non-essential elements of this
Directive, they must be adopted in accordance
with the regulatory procedure with scrutiny
provided for in Article 5a of Decision
1999/468/EC.
(23)
The Commission should be
empowered to adopt delegated acts in
accordance with Article 290 of the Treaty in
respect of the adaptation to technical
progress of certain parts of the general
framework set out in Annex I, […]
and
in respect of the establishment of a
methodology framework for calculating cost-
optimal levels of mininmum energy performance
requirements […] .
Article 1
Objective
Subject matter
Article 1
Objective
Subject matter
Note: insert at the end:
The requirements in this Directive are
minimum requirements and shall not prevent
any Member State from maintaining or
introducing more stringent protective
measures. Such measures shall be compatible
with the Treaty. They shall be notified to the
Commission.
1
OJ L 184, 17.7.1999, p. 23.
2
OJ L 184, 17.7.1999, p. 23.
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Note: this insertion is necessary in order to
reflect the text of the Article 176 of the 'old'
Treaty, which had to be read together with
Article 175 (the 'old' legal basis of this
Directive) and which stated: "The protective
measures adopted pursuant to Article 175 shall
not prevent any Member State from maintaining
or introducing more stringent protective
measures. Such measures must be compatible
with this Treaty. They shall be notified to the
Commission."
Article 5
Calculation of cost-optimal levels of minimum
energy performance requirements
1.
The Commission shall establish by
[…]
30 June 2011 a comparative
methodology framework for calculating
cost-optimal levels of minimum energy
performance requirements for buildings
and […] building elements .
The comparative methodology framework
shall be established in accordance with
Annex IIIa and shall differentiate between
new and existing buildings and between
different categories of buildings.
Those measures designed to amend non-
essential elements of this Directive by
supplementing it shall be adopted in accordance
with the regulatory procedure with
scrutiny referred to in Article […]
21(2) .
Article 5
Calculation of cost-optimal levels of minimum
energy performance requirements
1.
The Commission shall establish by
means of delegated acts in accordance with
Articles 20a, 20b and 20c by 30 June
2011 [] a comparative methodology
framework for calculating cost-optimal
levels of minimum energy performance
requirements for buildings and […]
building elements .
The comparative methodology framework
shall be established in accordance with
Annex IIIa and shall differentiate between
new and existing buildings and between
different categories of buildings.
[…]
Article 10
7c. (new) The Commission shall, by 2011, in
consultation with the relevant sectors, adopt a
voluntary common European Union certification
scheme for the energy performance of non-
Article 10
7c. (new) The Commission shall, by 2011, in
consultation with the relevant sectors, adopt a
voluntary common European Union certification
scheme for the energy performance of non-
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residential buildings. This measure shall be
adopted in accordance with the procedure
referred to in Article 21(3)]. Member States are
encouraged to recognise or use the scheme, or
use part thereof by adapting it to national
circumstances.
residential buildings. This measure shall be
adopted in accordance with the procedure
referred to in Article 21(2). Member States are
encouraged to recognise or use the scheme, or
use part thereof by adapting it to national
circumstances.
Article 20
Adaptation of framework Annex I to technical
progress
Points 1 and 2 of the Annex I shall be reviewed
at regular intervals, which shall not be shorter
than two years.
ΠPE-CO_S 3654/08 (2002/91 adapted)
(adapted)
new
The Commission shall adapt
Adaptations
of points 13 and 24 of the Annex I to this
Directive to technical progress.
Article 20
Adaptation of framework Annex I to technical
progress
Points 1 and 2 of the Annex I shall be reviewed
at regular intervals, which shall not be shorter
than two years.
ΠPE-CO_S 3654/08
(2002/91 adapted)
(adapted)
The Commission shall adapt
Adaptations
of points 13 and 24 of the Annex I to this
Directive to technical progress by means of
delegated acts in accordance with Articles
20a, 20b and 20c .
Article 20a
Exercise of the delegation
1.
Without prejudice to the deadline
referred to in Article 5(1), the powers to
adopt the delegated acts referred to in
Articles 5 and 20 shall be conferred on the
Commission for a period of 5 years following
the entry into force of this Directive. The
Commission shall make a report in respect of
the delegated powers at the latest 6 months
before the end of the 5 year period. The
delegation of power shall be automatically
extended for periods of an identical duration,
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unless the European Parliament or the
Council revokes it in accordance with Article
20b.
2.
As soon as it adopts a delegated act, the
Commission shall notify it simultaneously to
the European Parliament and to the Council.
3.
The powers to adopt delegated acts are
conferred on the Commission subject to the
conditions laid down in Articles 20b and 20c.
Article 20b
Revocation of the delegation
1.
The delegation of power referred to in
Articles 5 and 20 may be revoked by the
European Parliament or by the Council.
2.
The institution which has started work
in view of deciding whether to revoke the
delegation of power shall inform the other
legislator and the Commission at the latest
one month before the final decision is taken,
stating the delegated powers which could be
subject to revocation and the reasons for a
revocation.
3
The decision of revocation shall put an
end to the delegation of the powers specified
in that decision. It shall take effect
immediately or at a later date specified
therein. It shall not affect the validity of the
delegated acts already in force. It shall be
published in the Official Journal of the
European Union.
Article 20c
Objections to delegated acts
1.
The European Parliament and/or the
Council may object to the delegated act
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within a period of 3 months from the date of
notification.
2.
If, on expiry of that period, neither the
European Parliament nor the Council has
objected to the delegated act, or if, before that
date, the European Parliament and the
Council have both informed the Commission
that they have decided not to raise objections,
the delegated act shall enter into force at the
date stated in its provisions.
3.
If the European Parliament or the
Council objects to the adopted delegated act,
it shall not enter into force. The institution
which objects shall state the reasons for
objecting to the delegated act.
Article 1421
Committee procedure
1.
The Commission shall be assisted by a
Committee.
2.
Where reference is made to this paragraph,
Article 5a(1) to (4) and Article 7 of Decision
1999/468/EC shall apply, having regard to the
provisions of Article 8 thereof.
3. Where reference is made to this paragraph,
Articles 3 and 7 of Decision 1999/468/EC shall
apply, having regard to the provisions of Article
8 thereof.
Article 1421
Committee procedure
1.
The Commission shall be assisted by a
Committee.
[]
2. Where reference is made to this paragraph,
Articles 3 and 7 of Decision 1999/468/EC shall
apply, having regard to the provisions of Article
8 thereof.
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